CHAPTER 1: INTRODUCTION

"Laws and institutions must go hand and hand with the progress of the human mind…(a)s new discoveries are made… institutions must advance also, and keep pace with the times"

Thomas Jefferson (1)

"The law marches with medicine but in the rear and limping a little"

Windeyer J in Mount Isa Mines Ltd. v. Pusey (2)

THE PROMISE OF TELEMEDICINE

In their seminal text on telemedicine policy, Dr. Jay Sanders and Dr. Rashid Bashshur observed that telemedicine, through the use of "innovative information technologies that expand the productive capacity and extend the distributive efficiency of the health care system", (3) has been proposed as a multi-facetted tool to address three of the most persistent problems confronting the US health care system:

1. Uneven geographic distribution of health care resources throughout the country.
2. Inadequate access to quality, or any, health care on the part of certain segments of the population, including the under-privileged, the isolated and the confined, who are collectively referred to as the "underserved"
3. The unabating rise in the cost of care.

The potential benefits of telemedicine, both direct and indirect, are numerous and include:

• Savings from reduced travel costs of specialists
• Savings from reduced travel cost of patients
• Savings on hospital accommodation of patients that can be treated remotely
• Savings on hospital processing costs of patients that can be treated remotely
• Savings due to provision of health care in remote clinics or mobile health units versus expansion of urban or regional hospitals (i.e. Differences in cost of construction and running of facilities; wages differential; etc.)
• Better opportunity for second opinion and consultations resulting in avoidance of delays or costly mistakes;
• Reduced waiting time which can in some cases prevent serious complications or death;
• Reduced loss of income for patients who need not travel;
• Reduced expenses for family members who might otherwise accompany the patient
• Improved effectiveness of specialists: broader reach, more patients seen due to reduced travel
• Improved overall health care management, both internally and externally;
• Improved availability and reduced cost of training of local medical specialists;
• Increased collegial support to medical personnel working in remote and isolated areas, resulting in increased job satisfaction;
• Improved teaching and learning possibilities and opportunities.
• Increased revenues to (national ) equipment providers, hospitals, telecom services providers and the like;
• Enabling specialist and technical personnel to increase their knowledge and qualifications;
• Facilitating decentralisation of care and distribution of competence;
• Promoting maximisation of scarce central resources (specialist, diagnostics apparatus and computers, etc.) (4)

Telemedicine therefore often much promise for patients, (5) clinicians, (6) hospitals (7) and other groups (8).

The problems of equity, access and cost are not unique to the USA. They are shared by Australia and all other developed nations. Given the potential of telemedicine to overcome or at least address major health care problems, it is little surprise that State, Territorial and Federal governments in Australia have been at the forefront of looking at telemedicine, often as part of a broader Information and Communications Technology (ICT) strategy (9). In recent years, the level of interest in Australia has accelerated, as exemplified by the release of several, major reports and papers (10).

THE POLARITIES - DIVERGENT VIEWS ABOUT "VIRTUES" AND "VICES" OF TELEMEDICINE

The rapidly growing body of telemedicine literature, published by experts in a wide range of areas, (11) is noted for the diversity and frequent divergence of opinion as to the "pros" and "cons" of telemedicine. Significant differences of opinion have been expressed as to the extent to which telemedicine will generate positive or prejudicial effects on:

• The healthcare system
• Quality of care issues
• The role and status of rural/isolated healthcare practitioners
• Medico-legal issues and risks, and
• The position of the healthcare consumer.

"Pros" - The "tele-evangelical" view

At one end of the spectrum of debate, it is argued that telemedicine constitutes a revolutionary paradigm shift which will have "the potential of having a greater impact on the future of medicine than any other modality" (12). Among its many virtues is its potential:

"For lowering the cost of healthcare services, reducing healthcare services, reducing overall costs to patients, keeping patients at or close to home, and increasing both the availability and the quality of care, especially in rural and underserved areas. Lower healthcare costs will result from: earlier diagnosis and treatment of medically difficult conditions, need for fewer facilities, use of lower-cost rural facilities, less travel time and associated costs for healthcare providers. Overall savings to patients can result form earlier diagnosis and treatment, savings and travel to and from providers and reductions in lost work time" (13).

Some argue that telemedicine will lead to a patient-focussed care model which addresses "wellness" and preventative issues in a proactive, cost-efficient manner, with the result that healthcare consumers will be better cared for, better informed, happier with outcomes and, consequently, less litigious. It is also argued that telemedicine will contribute to the viability of rural practice by overcoming many current disincentives to practise, such as professional isolation, and by enhancing diagnostic and treatment expertise and access to such expertise.

"Cons"

At the other end of the ideological spectrum is what is sometimes referred to as the "tele Luddite" view. It is argued that telemedicine constitutes no more than the introduction of another layer of technology into an already complex healthcare environment, with little or no demonstrable benefits either in terms of cost or quality of care. They argue that telemedicine is "second best" medicine and can never replace direct, face-to-face evaluation, diagnosis and treatment. They argue that these innate deficiencies will inevitably impede the quality of care and, as a consequence, generate consumer dissatisfaction and result in litigation. Further, they argue, it has the potential to undermine all "established" and successful care networks. Telemedicine, so they argue, will syphon consultations away from local practitioners forcing them to leave their communities and forcing consumers to seek "remote" care from practitioners who might not be the best but might instead simply be the cheapest available source of care.

WHY THE POLARITIES? REASONS FOR THE DIVERGENCE OF VIEWS

These vastly discrepant views are, it is submitted, attributable to several factors, including the inevitable element of "hype" or rhetoric that is present when emerging areas are championed by some and opposed by others. Further, it is clear that there is room for legitimate dispute and debate. The issues raised by telemedicine are often not easily susceptible to ready identification, let alone resolution. In addition, needs and perceptions vary according to the perspective of the relevant stakeholder. The policy-maker/regulator perspective is likely to differ from the practitioner/administrator perspective.

Most importantly, however, it is suggested that commentators are often at terminological and definitional cross-purposes: like is not being compared with like.

Analysts will often differ, either deliberately or inadvertently, in the way they identify the breadth of the health information infrastructure applications that properly fall within the ambit of "telemedicine". For example, some commentators adopt a "telemedicine is video-conferencing" position, failing to recognize the other clinical applications which, by virtue of their particular facts, necessitate a revised analysis of medico-legal, policy and regulatory repercussions.

Endnotes to Chapter 1

(1) The Jefferson Cyclopedia: A Comprehensive Collection of the Views of Thomas Jefferson" (John P. Folley, editor, 1967) p. 726

(2) [1970] 125 CLR 383 at 395

(3) R.L. Bashshur, J.H. Sanders and G.W. Shannon, Telemedicine Theory and Practice 1997, p. 5

(4) These benefits were identified in a 1996 paper prepared by the International Telecommunications Union entitled Impact of Telecommunication on Health Care and other Social Services: Telemedicine and Developing Countries

(5) For example, faster diagnosis and treatment; reduction of additional examinations; improved treatment of coronary diseases; avoidance of inconvenience of travelling to another hospital or physician

(6) For example, new opportunities to consult experts, broader base for decision-making, avoidance of inconvenience of travelling, improved image quality

(7) Reduced risk of images getting lost, faster and more precise diagnosis and treatment, better communication between sites, transport savings, more efficient use of equipment

(8) Relatives can be closer to patients, provision of an additional teaching resource for students, facilitates scientific/statistical analysis.

(9) For example, the Department of Human Services’ Final Report on Information, Information Technology and Telecommunication Strategy for Victorian Public Hospitals, December 1996.

(10) Health On Line: a Report on Health Information Management and Telemedicine, the House of Representatives Standing Committee on Family and Community Affairs, October 1997 ("HOL");
The telemedicine industry in Australia; from fragmentation and to integration, a report for the Department of Industry, Science and Tourism by John Mitchell, February 1998 ("the DIST report"); and
The National Telehealth Committee (as it was then known): The Australian Telehealth Services Issues Papers, Australian Health Ministers Advisory Council, October 1996, and its subsequent Report to AHMAC of January 1998
(11) including medicine and its various sub-specialties, academia, law, healthcare management, telecommunications, informatics, and policy

(12) M.E. DeBakey, "Telemedicine has now come of age" Telemedicine Journal, Vol. 1 No. 1, 1995, p.3 at p.4.

(13)Washington State Board of Health Telemedicine. A Report to the Legislature November 1997, p.2.

Index